McFadden sentencing postponed

Prosecutors have postponed the sentencing hearing for a man convicted of beating a state's witness due to double jeopardy implications raised by the judge.

In a ruling filed with the court Tuesday, Circuit Court Judge Darrell Auxier entered a judgment of conviction against 23-year-old Dustin C. McFadden for criminal confinement, a Class B felony, and battery as a Class B misdemeanor.

In January, a jury convicted McFadden of criminal confinement and battery resulting in serious bodily injury and aggravated battery, both Class C felonies.

Since the latter two charges required the same elements to prove a crime had occurred, the judge consolidated the charges to avoid any double jeopardy violations.

But Auxier also reduced the battery charge from a Class C felony to a Class B misdemeanor. In his ruling, Auxier said a portion of the double jeopardy statute requires that the same evidence cannot be used to support two crimes.

McFadden was arrested for an attack on John Taulbee, which police say was retaliation for testimony Taulbee gave in a previous case. Testimony provided during McFadden's trial indicated that McFadden pulled Taulbee to the ground and he and Garry A. Gibson, a co-defendant in the case, kicked Taulbee.

Auxier believes both the pulling and the kicking are similar crimes, given that a battery took place in each event, prompting the lessening of the battery charge.

Prosecutor Chad Lewis asked for a continuance on the matter Wednesday so he could have additional time to review double jeopardy laws to determine how Auxier's ruling would impact the case.